Citation Nr: 0126570
Decision Date: 11/20/01 Archive Date: 11/27/01
DOCKET NO. 00-15 761 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for the residuals of
injury to the right ankle, to include degenerative joint
disease.
3. Entitlement to service connection for the residuals of
cellulitis.
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military Affairs Bureau for Veterans
Affairs and Assistance
WITNESSES AT HEARING ON APPEAL
Appellant and Appellant's Spouse
ATTORNEY FOR THE BOARD
L.J. Bakke, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1943 to
January 1946. This appeal arises before the Board of
Veterans' Appeals (Board) from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania.
The RO has developed the veteran's claim for the residuals of
cellulitis as a claim for service connection for cellulitis
in the right foot. In his original claim, the veteran noted
only that he wished service connection for cellulitis, and
did not specify a particular part of the body as having been
treated for such condition. Subsequently, in his notice of
disagreement, substantive appeal, and testimony before the
undersigned member of the Board, the veteran consistently
identified his left foot as the part of his body affected by
the cellulitis. However, at the July 2001 hearing the
veteran stated that he did not have any difficulty with his
left foot and that it would serve no useful purpose for the
VA to pursue that claim.
REMAND
The Board has reviewed the record and finds that additional
development is required prior to further appellate action.
Initially, the Board notes that the law changed significantly
during the pendency of the appellant's appeal. In November
2000, the Veterans Claims Assistance Act of 2000 (VCAA) was
enacted as Public Law No. 106-475, 114 Stat. 2096 (Nov. 9,
2000). The new statute amended and clarified VA's duty to
assist claimants in the development of the facts relevant to
their claims, and is applicable to claims pending at the time
of its enactment, including the present claim before the
Board. Additionally, on August 29, 2001, VA issued
regulations implementing the provisions of VCAA "to
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits." See 66 Fed. Reg. 45620-45632
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a)).
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case.
The veteran avers that his claimed bilateral hearing and
right ankle disabilities are the result of his active
service. To this end he has presented competent medical
evidence that he currently manifests mild to severe sloping
sensorineural hearing loss in his right ear and moderately
severe sensorineural hearing loss in his left ear, and
traumatic degenerative osteoarthritis of the right ankle with
a history of foot and ankle cellulitis, according to a
February 1999 VA examination report.
Service personnel records reflect that the veteran served on
board the U.S.S. Jeffers in the Pacific. Service medical
records reflect that the veteran was treated at the
Philadelphia Naval Hospital in October 1944 for cellulitis of
the left foot. In September 1945 he was treated for
bronchitis aboard the U.S.S. Jeffers (DMS)-27. When the
veteran was examined in January 1946 for discharge from
active service, his hearing was found to be normal on coin
click and whispered voice tests. He was found to exhibit
bilateral pes planus but no other musculoskeletal defects,
abnormalities, diagnoses, or findings were noted.
The veteran testified before the undersigned member of the
Board in July 2001, that he sustained acoustic trauma while
on active service. Specifically, he avers that he was
assigned as a loader and fuse setter for 20 and 40 millimeter
cannons, dual 40 millimeter cannons, and 5-inch guns and, as
such, he was exposed to the sound of their firing when the
ship to which he was assigned gave combat support in the
Pacific Ocean. During one raid, he testified, he tasted
blood and felt that his eardrums had ruptured. He further
testified that he injured his right foot while on active
service, and that he received treatment from the VA Medical
Center (VAMC) in 1947. Of record are lay witnesses'
statements attesting to the fact that the veteran injured his
right foot on active duty. One statement indicates that the
veteran injured his foot during construction in June 1945,
when the ship, the U.S.S. Jeffers, was being converted from a
destroyer to a minesweeper. The witness states that the
veteran was treated at a hospital in Guam. The second
statement is offered by the former Commanding Officer of the
ship, and also indicates that the injury occurred in Guam, in
June 1945.
Finally, the veteran has presented the statements of a
private treating physician, who believes the veteran's
hearing loss is related to his active service. In May 2000,
the physician noted the veteran's history of exposure to
noise trauma in "battles in both seas during the Second
World War" and in his "combat history." In July 2001, he
opined:
the [veteran's] hearing loss is as likely
as not a direct result of his exposure to
acoustic noise as well as to concussive
trauma. I do feel that his exposure to
noise during his military career may have
acted as an inciting and precipitating
factor in his current limited useful
hearing.
One VA examiner in February 1999 noted that the veteran's
service history included "hazardous noise exposure to
gunfire." In contrast, however, the VA physician who
conducted the February 1999 examination for ear diseases
opined that the veteran's hearing loss began 16 years prior
to the examination and was not related to military service.
Rather, the physician observed that the veteran worked in a
knitting mill without ear protection for 26 years following
his discharge from active service. Yet, the VA examiner
noted that the record presented no history of direct ear
trauma or ear infection. As noted above, the record now
reflects the veteran's testimony that he was exposed to
acoustic trauma during active service. His representative
further testified that the veteran worked for 35 years in a
quiet environment. The record reveals no opinions concerning
the veteran's right ankle disabilities.
The conflict concerning the etiology of the veteran's
diagnosed bilateral hearing loss must be clarified. In
addition, the Board notes that while the RO requested records
of treatment accorded the veteran for his claimed conditions,
it has obtained records only from 1998 to 1999. Moreover,
the veteran's service medical records are incomplete.
Another attempt must be made to obtain those records of
treatment he was accorded for an ankle injury in Guam. See
66 Fed. Reg. 45631 (Aug. 29, 2001) (to be codified at
38 C.F.R. § 3.159(c)(1),(2),(4)).
The veteran is advised that while the case is on remand
status, he is free to submit additional evidence and
argument. See Kutscherousky v. West, 12 Vet. App. 369
(1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
In addition, in order to make certain that all records are on
file, while the case is undergoing other development, a
determination should be made as to whether there are any
additional records that should be obtained.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO should request the veteran to
identify all health care providers who
have treated him for his claimed
bilateral hearing loss and right ankle
disabilities. After obtaining any
necessary authorization the RO should
request that all identified health care
providers furnish copies of all medical
records of treatment accorded the veteran
for his claimed bilateral hearing loss
and right ankle disabilities. In
particular, the RO should obtain any and
all records of treatment accorded the
veteran at Cocalico Valley Health
Association in Adamstown, Pennsylvania
that are not already of record, and by
John M. Penta, M.D. of West Reading,
Pennsylvania. The RO should further
ensure that it obtains all records of
treatment accorded the veteran at VAMCs
in Reading and Lebanon, Pennsylvania
since his discharge from active service
in 1946.
2. The RO should make a specific attempt
to obtain any additional service medical
records, including any and all clinical
medical records of treatment the veteran
received for his right ankle injury on
the U.S.S. Jeffers and at the Naval
Hospital Guam in June 1945.
3. Where attempts to obtain records are
unsuccessful, the RO should document
these attempts and make such
documentation part of the claims file.
The veteran and his representative should
be informed of such negative results.
See 66 Fed. Reg. 45631 (Aug. 29, 2001)
(to be codified at 38 C.F.R. § 3.159(e)).
4. The RO should arrange for the veteran
to be scheduled for an examination to
determine the etiology and date of onset
of his hearing loss. The claims folder
must be made available to the examiner in
conjunction with the examination. After
reviewing the records and examining the
veteran, the examiner should express an
opinion as to the etiology and date of
onset of the veteran's bilateral hearing
loss. The examiner should state whether
it is as likely as not that the veteran's
bilateral hearing loss began during his
military service or is related to his
exposure to loud noise during such
service.
5. The RO should arrange for the veteran
to be scheduled for an examination to
determine the etiology and date of onset
of his right ankle disability. The
claims folder must be made available to
the examiner in conjunction with the
examination. After reviewing the records
and examining the veteran, the examiner
should express an opinion as to the
etiology and date of onset of his right
ankle disability. The examiner should
state whether it is as likely as not that
any current right ankle disability is
related to the right ankle injury which
the veteran sustained in June 1945.
6. The RO must then review the claims
file and ensure that all notification and
development action required by the VCAA
and the implementing regulations are
fully complied with and satisfied.
7. Thereafter, the RO should
readjudicate the veteran's claims in
light of the newly acquired evidence. If
the benefits sought on appeal remain
denied, the veteran and his
representative should be provided with a
supplemental statement of the case. The
supplemental statement of the case must
contain notice of all relevant actions
taken on the claim for benefits, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should be allowed for response.
The case should thereafter be returned to the Board for
further review, as appropriate. The veteran need take no
action until he is so informed. The Board intimates no
opinion as to the ultimate outcome of this case. When
requested to appear for an examination, the veteran is
reminded that it is his responsibility to report for
examination as scheduled, and that the consequences for
failing to report for VA examination without cause may
include denial of his claim. 38 C.F.R. § 3.158, 3.655
(2001).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).